Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. JOSEPH A. POWER, Judge, presiding. Judgment
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
The defendant, Argusta Appleby, was convicted in a bench trial for the offense of rape and sentenced by the court to a term of from not less than four (4) nor more than ten (10) years in the State Penitentiary. He appeals.
Among the theories advanced by defendant on review are contentions relating to: (1) the propriety of the circumstances surrounding his waiver of trial by jury; (2) incompetence of counsel in the trial court; and (3) the prejudice and predisposition of the trial judge against him. Suffice to say however, that having thoroughly reviewed the record, the court fails to find substance in any of these contentions which, in any event, would have no bearing upon a retrial of the issues. The court will accordingly limit its discussion to defendant's last theory on appeal, that the evidence presented was insufficient to establish his guilt of the crime charged beyond a reasonable doubt.
The complaining witness, Lillian Phillips, testified that the alleged incident occurred in the early morning hours of June 27, 1966, in the bedroom of her apartment located at 1028 East 46th Street, Chicago, Illinois. The prosecutrix had retired to bed at approximately 10:00 p.m. the previous evening, leaving all the lights in her apartment on, including the bedroom. She slept in the same bed with four children (whose names and ages do not appear). Her husband was away at work. At approximately 5:45 a.m., a man appeared in the bedroom, with his pants removed, brandishing a knife. Upon being awakened, Mrs. Phillips observed that it was still dark outside and that the lights in her apartment had been turned off. She stated however that the lights (from 60-watt bulbs) in her bathroom and a closet "in the back" remained illuminated. The intruder advanced and held the knife to the victim's throat threatening to kill her if she attempted to scream for help.
The assailant thereupon forced the witness at knife-point to engage in an act of sexual intercourse upon the bed. Mrs. Phillips stated that the man remained in the room for approximately fifteen minutes and upon exiting informed her that he resided upstairs in apartment 409, inquiring, ". . . was I coming up to see him. . . ." The victim testified that none of the four children in the bed had been awakened by the incident, explaining that she maintained silence, being in fear of her life. The witness testified that she thereafter immediately informed the building janitor of the assault and asked him to call the police. She stated that the police arrived to investigate, and acting on her information, discovered that there was no apartment 409 in the building. The witness added that she then promptly sought treatment at both Provident and Cook County Hospitals for injuries resulting from the attack.
Two days later, the prosecutrix stated that she had an occasion to observe defendant at close quarters, entering her apartment building. She testified that while she had an "idea" he was the man who had accosted her, she could not be positive about recognizing him because of a flat cap he was then wearing. Mrs. Phillips inquired and discovered that the man had taken the building elevator to the fourth floor. She stated however that the next day she observed defendant across the street from her building (described as a distance of about 20 yards) and recognized him as the rapist, immediately summoning two policemen in the vicinity to make an arrest. Defendant was similarly pointed out by the prosecutrix in open court.
One of the arresting officers, Albert Smith, corroborated Mrs. Phillips' account of the streetside identification, stating that defendant, when accused, denied his implication in the crime. In response to inquiry, the officer stated that on June 27th he had had occasion to discover a complaint for rape made by the prosecutrix (presumably among the files at the Area 21 Police Headquarters to which he was assigned). The officer could otherwise add little to the State's case but to recall that at the subsequent preliminary hearing defendant had claimed to have been at work on the morning in question. Smith stated that a routine check with defendant's employer proved to the contrary. Testifying in his own behalf at trial, defendant explained in this regard that he had been mistaken as to the day of the week involved and had not worked that particular morning. Defendant admitted to having been a resident in the prosecutrix's building in apartment 442 at the time of, and for some six to eight weeks prior to, the date of the offense.
Defendant's defense purported to establish his presence on both June 26th and 27th at the home of his fiancee, Mabel Watson, at 6841 South Emerald Avenue. The alibi was introduced through the testimony of Miss Watson, one Helen Fenner and that of defendant himself, and was consistent in all but more detailed respects. It was submitted that defendant had, as he often did, stayed overnight in Miss Watson's apartment on the evening of June 26th where he remained until about noon the following day. Defendant had admittedly fathered two of Miss Watson's children and frequented her home to assist her with household chores.
Each of the above witnesses testified that defendant had participated in a card game in Miss Watson's apartment which carried late into the evening preceding the crime. These respective accounts however differed considerably as to the specific number and identity of the other persons also joining in and leaving the game. Defendant testified that he had thereafter fallen asleep on the living room couch. As Miss Watson recalled, she and defendant had retired to bed together explaining that her couch was a sectional and too small to accommodate him. Helen Fenner similarly recalled having coffee with Miss Watson and defendant the following morning in the apartment, conceding however, on cross-examination, that she had discussed her testimony with Miss Watson on several occasions prior to the trial. This was the extent of the material portions of the evidence adduced below.
A prosecution for rape is demanding of the utmost caution and circumspection by the courts, as the female's accusation, stemming from the clandestine circumstance of the offense is easily made, difficult to prove and ofttimes even more difficult to disprove. People v. Kepler, 76 Ill. App.2d 135, 221 N.E.2d 801 (1966). Consequently, a reviewing court considers itself especially charged with the duty to scrutinize the sum and substance of the evidence upon which a conviction for rape is predicated.
As is often stated in criminal cases of this nature, it is incumbent upon the prosecution to prove beyond a reasonable doubt both the forcible or nonconsensual act of carnal knowledge as well as its perpetration by the accused. People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232 (1966). Notwithstanding the fact that the case was tried before a court, sitting without a jury, which is in a superior position to observe the witnesses, a court of review should not hesitate to upset the conviction where the evidence is either so unsatisfactory, improbable or open to uncertainty as to cast some reasonable doubt upon the guilt of the defendant. People v. Qualls, 21 Ill.2d 252, 171 N.E.2d 612 (1961).
The State urges as dispositive of the issue the rule which states that the uncorroborated testimony of the complaining eyewitness alone, if clear and convincing, is sufficient to support a conviction on the charge of rape, We, however, on the basis of the record before us, do not think that the State can prevail by singularly relying on the testimony of the prosecutrix. Under the circumstances demonstrated by the instant case, where, as here, the testimony by the complaining witness alone is not of that affirmative character which the law requires, and the denial by the accused is buttressed by the testimony of persons in a position to know and relate the truth, then the victim's accusatorial account must be supported by or find substantiation in the facts and circumstances peculiar to the case. People v. Szybeko, 24 Ill.2d 335, 181 N.E.2d 176 (1962); People v. Silva, 405 Ill. 158, 89 N.E.2d 800 (1950).
The only link between defendant and the crime rests in an identification which would appear susceptible to error, and defendant's admitted residence in the building where the offense was committed. Under such circumstances, the trier of fact cannot lightly set aside the alibi testimony offered in the accused's behalf as unworthy of belief, albeit partially ...